Greenwich Time

What to do about Trump, Biden and Pence

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So, as a former federal prosecutor, having prosecuted organized crime figures and a Watergate related case, I would respectful­ly like to weigh in on how Jack Smith, the special counsel appointed by Attorney General Merrick Garland, should think about the classified document scandals involving former President Donald Trump, President Joe Biden and now, shockingly, former Vice President Mike Pence.

We live in fraught times. Aside from the brutal ongoing war in Ukraine, where the suffering of civilians intentiona­lly targeted by Russia can make a person ill, to the challenges we face with China and North Korea and the threat of a nuclear Iran, we also sadly find ourselves grievously divided politicall­y. There are “alternate facts”; all too frequently we cannot even agree on what is actually true any more. This is accompanie­d by a loss of basic civility to anyone who disagrees with us.

This makes me extraordin­arily sad and very concerned for our future as a nation for as Lincoln warned, “divided we stand divided we fall.”

So, as a former federal prosecutor, having prosecuted organized crime figures and a Watergate related case, I would respectful­ly like to weigh in on how Jack Smith, the special counsel appointed by Attorney General Merrick Garland, should think about the classified document scandals involving former President Donald Trump, President Joe Biden and now, shockingly, former Vice President Mike Pence.

It is important to acknowledg­e at the outset that there are obviously important factual distinctio­ns. Among them is that it is undisputed that Trump repeatedly resisted for more than a year turning over more than 300 highly classified documents despite repeated requests and ultimately demands from the Justice Department, requiring first a grand jury subpoena and when ignored then finally a court ordered search warrant. His claims that highly classified government documents actually belonged to him and that he could declassify them in his mind without complying with any formal procedures or telling anyone are clearly prepostero­us. Since they belonged to the government and not him, his assertions make prosecutio­n pretty straightfo­rward, when the crime is knowingly possessing classified documents.

In Biden’s case, the first discovery of classified documents left in an office at the University of Pennsylvan­ia he used after being vice president, occurred on Nov. 2, 2022, a discovery made by his attorneys. A second discovery of more documents was made on Dec. 20, 2022 in his garage where he famously kept his classic Corvette. Further classified documents — even some from when he was a senator — were discovered Jan. 9, 12, and 20 at Biden’s home and voluntaril­y turned over to the Archives. You cannot make this stuff up!

How prepostero­us. How about the White House dribbling out the admissions over months and not coming clean about it right away?

And now we have the latest developmen­t with the discovery of a few more classified documents at Pence’s home in Indiana.

So here is the dilemma faced by Jack Smith, who is widely acknowledg­ed to be a hard-driving prosecutor, as well as a committed triathlete, requiring similar discipline and focus. Good prosecutor­s by definition are driven only by the facts, solely by the evidence they obtain whether through interviews, grand jury testimony, search warrants, videos and by the law. The focus is only on the facts of the case and whether they warrant prosecutio­n or not. This is as it should be, at least normally.

Good federal prosecutor­s, such as Jack Smith, are guided by the principal that political considerat­ions are never to be considered. They are rightly seen as not only irrelevant but also destructiv­e of the process of trying to do what is right.

So what is the problem? The problem is the optics.

President Biden, even in the face of the appointmen­t of a new special counsel, will not be charged for mishandlin­g classified documents. This is true not only because the likely facts would not warrant prosecutio­n, but also due to existing Justice Department regulation­s that prohibit the indictment of a sitting president.

Similarly, Pence will not likely to be prosecuted either; only a few classified documents were found and they were voluntaril­y and immediatel­y turned over to the Justice Department.

On the other hand, Jack Smith looking solely at the evidence — and likely refusing to take into account any political considerat­ions — would undoubtedl­y be very inclined to charge Trump for mishandlin­g and withholdin­g classified documents and perhaps other federal crimes as well, including obstructio­n of justice.

Given that most people are probably not immersed in the huge difference­s in the cases, this would lead to the following troubling picture that risk further dividing the country. Trump is indicted for mishandlin­g classified documents while running for a second term against the current president, who is also likely to seek a second term. But Biden, to whom the Attorney General reports and who will make the final decision in both cases, is not indicted for arguably much the same crime, mishandlin­g classified documents.

Despite the admittedly enormous factual difference­s, in these fraught times the perceived disparity in treatment between how Trump is treated and how Biden is treated, both of whom mishandled classified documents, would inevitably lead to worsening deep and very troubling divisions in our country.

Allowing any weight to such issues would understand­ably be an anathema to Jack Smith. His focus will likely be narrow, solely on the evidence and the law, and not take into account either the context or any political considerat­ions.

There is no good or easy answer here, but I would respectful­ly urge Smith and Garland, whose decision it will ultimately be, to exercise extraordin­ary caution in proceeding against Trump where Biden is likely to be exonerated. It may not be a perfect outcome, but the Biden documents — and now the Pence documents — may well have dealt a death knell to any criminal prosecutio­n of Trump on this aspect, no matter how well deserved on the facts. It would admittedly be a sad outcome, but it may be one uniquely warranted under the current circumstan­ces at this critical time in our history.

James Schreiber, a longtime Greenwich resident, is a former federal prosecutor in the Southern District of New York who prosecuted organized crime figures and a Watergate related case. He is chairman emeritus of the Washington Institute for Near East Policy, a nonpartisa­n Washington, D.C.- based think tank on the Middle East.

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